After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:

Miguel De Freitas, the Claimant herein, alleges in Claim Number 104613 in his
first cause of action that he was injured while incarcerated at Green Haven
Correctional Facility because of the Defendant's negligence in failing to
properly maintain a security window which struck him. He specifically indicates
that on January 30, 2000 at approximately 9:15 p.m. he was injured when a
security window inside the J-Block housing unit recreation room dropped open and
crashed on the right side of the claimant's head. He states in his verified
Claim that defendant's agents failed to conduct inspections of the window as
required,[1] and failed to correct any defects.

In its Answer, the Defendant had interposed a general denial, as well as the
affirmative defenses of contributory negligence, assumption of risk, failure to
exhaust administrative remedies; as well as jurisdictional defenses. The
Defendant had withdrawn the defense with respect to failure to exhaust
administrative remedies in its Bill of Particulars filed June 20, 2002, and, in
response to an earlier motion, the Defendant had also withdrawn its affirmative
defenses of contributory negligence and assumption of
risk.[2] The only remaining defense is the
jurisdictional one, but given Defendant's default in opposing the present
motion, and the acknowledgment in its Answer that a Notice of
Intention[3] had been received thus extending the
time within which the Claim could be served and filed, the defense is not
preserved and is hereby stricken.

Civil Practice Law and Rules §3212(b) provides in pertinent part:

. . . A motion for summary judgment shall be supported by affidavit, by a copy
of the pleadings and by other available proof, such as depositions and written
admissions. The affidavit shall be by a person having knowledge of the facts;
it shall recite all the material facts; and it shall show that there is no
defense to the cause of action or that the cause of action or defense has no
merit. The motion shall be granted if, upon all the papers and proof submitted
the cause of action or defense shall be established sufficiently to warrant the
court as a matter of law in directing judgment in favor of any party . . . the
motion shall be denied if any party shall show facts sufficient to require a
trial of any issue of fact.

Once a movant has made a prima facie showing of entitlement to judgment
as a matter of law by proffering sufficient evidence to eliminate any genuine
material issues of fact, the party in opposition to the motion for summary
judgment must tender evidentiary proof in admissible form to establish the
existence of material issues that require a trial. Winegrad v New York
University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New
York, 49 NY2d 557 (1980).

Additionally, Civil Practice Law and Rules §105(u) indicates that ". . .
[a] ‘verified pleading' may be utilized as an affidavit whenever the
latter is required." The use of the Claimant's own sworn statements contained in
his verified pleading together with the affidavit submitted in support of the
motion, accompanied as they are by documentary evidence including New York State
Department of Correctional Service records suffice here. Alvarez v Prospect
Hospital, 68 NY2d 320, 325 (1986).[4] The
Court finds that the motion is adequately supported.

Although the State has a duty to protect inmates from foreseeable risks of
harm, it is not the insurer of inmate safety. Its duty is to exercise
"reasonable care under the circumstances . . ." [Basso v Miller, 40 NY2d
233, 241 (1976)], to protect against foreseeable risks of harm. Assuming that
the State did not create the dangerous condition, a Claimant must show that the
State had actual or constructive notice of the condition and failed to act
reasonably to remedy it. Gordon v American Museum of Natural History, 67
NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual
notice. Lewis v Metropolitan Transportation Auth., 99 AD2d 246, 249 (1st
Dept 1984), affd, 64 NY2d 670 (1984). With respect to
constructive notice, any " . . . defect must be visible or apparent and it must
exist for a sufficient length of time prior to the accident to permit . . . [a
defendant] to discover and remedy it . . . (citation omitted)." Gordon
v American Museum of Natural History, supra, at 837.

In this case, Claimant has established without contradiction that there were
outstanding work orders for the repair of the windows in the J-Block housing
area [See Affidavit in Support, Exhibit D], that the State should have
been aware of the condition given the failure to inspect, and that the failure
to fix the window within a reasonable time was the proximate cause of Claimant's
injury. [ibid. Exhibits E and F].

The Court is satisfied, based upon Claimant's presentation, and the lack of any
contradictory information, that Claimant is entitled to judgment as a matter of
law, as there are no triable issues of fact presented as to the Claimant's first
cause of action. Accordingly, Claimant's motion number M-67504 is hereby
granted in its entirety, and a trial on the issue of damages alone with respect
to his first cause of action[5] shall be held as
soon as it is practicable.

January 23, 2004White
Plains, New York

HON. THOMAS H. SCUCCIMARRAJudge of the Court of
Claims

[1] Claimant cites regulations promulgated by the
Commissioner of Corrections that pertain to local correctional facilities, and
establish an obligation in local facilities to conduct regular inspections of
such facilities. See 9 NYCRR §7003.6. These regulations are not
applicable to facilities under the aegis of the New York State Department of
Correctional Services.

[3] In his Claim the Claimant indicates he served
a Notice of Intention upon the Attorney General April 17, 2000, within ninety
(90) days of the accrual of the Claim.

[4]"A fair reading of the attorney's affirmation,
the hospital records and the defendant's deposition testimony compel the
conclusion that no material triable issues of fact exist as to the claims of
malpractice asserted against the defendant in the amended complaint as amplified
by the bill of particulars. The fact that defendant's supporting proof was
placed before the court by way of an attorney's affirmation annexing deposition
testimony and other proof, rather than affidavits of fact on personal knowledge,
is not fatal to the motion . . . (citations omitted)."

[5] The Court notes that the Claimant alleges
three additional causes of action in his Claim, that are not the subject of the
present motion. As a second cause of action, Claimant alleges defendant's
agents delayed medical treatment to his detriment, as a third cause of action
Claimant alleges violation of his New York State Constitutional rights, and as a
fourth and final cause of action, Claimant alleges a failure to properly train
correction officers and employees in first aid. No factual assertions or legal
arguments have been made with respect to these causes of action, thus no ruling
with respect to these claims is made.